Mitchell v. Qwest Communications International, Inc.

Full title: SHEILA MITCHELL, Plaintiff, v. QWEST COMMUNICATIONS INTERNATIONAL, INC.…

Court: United States District Court, D. Colorado

Date published: Dec 1, 2006

Civil Action No. 06-cv-00708-WDM-BNB (D. Colo. Dec. 1, 2006)

Opinion

Civil Action No. 06-cv-00708-WDM-BNB.

December 1, 2006

ORDER REGARDING STIPULATED DISMISSAL

WALKER MILLER, District Judge

This matter is before me on a stipulation and motion for dismissal with prejudice, filed by Plaintiff Shelia Mitchell (Mitchell), Defendant Snelling Personnel Services (Snelling), and Defendant TMKV Group, LLC (TKMV). Defendant Qwest Communications International, LLC (Qwest) does not join in this motion.

The first part of this motion seeks to dismiss this case with prejudice, as to Snelling and TKMV. This part of the motion was addressed on November 27, 2006, when I issued a notice recognizing the dismissal of these parties. (Notice of Dismissal, Docket No. 45)

The second part of this motion, however, seeks to dismiss the Third Cause of Action as to all defendants — which now includes only Qwest. This filing cannot be properly construed as a motion to voluntarily dismiss pursuant to Fed.R.Civ.P. 41(a)(2). Rule 41 applies only to situations where a plaintiff wishes to dismiss an entire action. Fed.R.Civ.P. 41; see also Gobbo Farms Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996) ("[Rule 41] speaks to dismissal of an action, not just a claim within an action."); Ethridge v. Harbor House Rest., 861 F.3d 1389, 1392 (9th Cir. 1988) ("[P]laintiff may not use Rule 41(a)(1)(i) to dismiss, unilaterally, a single claim from a multi-claim complaint."). Instead, "[rule] 15(a) is the appropriate mechanism `[w]here a plaintiff desires to eliminate an issue, or one or more but less than all of several claims, but without dismissing as to any of the defendants.'" Ethridge, 861 F.3d at 1392 (quoting 5 J. Moore, J. Lucas J. Wicker, Moore's Federal Practice ¶ 41.06-1, at 41-83 to -84 (1987)).

Therefore, I construe the second part of the parties' stipulated motion as a request for leave to further amend the Amended Complaint pursuant to Rule 15(a). Qwest has not objected. Accordingly, the motion is granted and Mitchell will be allowed to file, no later than December 15, 2006, a second amended complaint removing her Third Cause of Action.